Rights Under Review

Good morning from Buffalo, New York, on this First day of Diwali, the Hindu Festival of Lights.

Another eventful week, one in which we certainly could use the victory of light over darkness to help guide the way.

The biggest thing last week were the oral arguments in the Supreme Court regarding Louisiana v. Callais—a case with enormous potential consequences for the landmark 1965 Voting Rights Act (VRA) and the future of representation in Congress.

At the heart of this case is Section 2 of the VRA, which currently prevents states from implementing electoral practices or procedures, including voting district maps, which “result in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The case centers on the allegation that creating a second majority-Black district in Louisiana, as the VRA requires, violates the Equal Protection Clause of the 14th and 15th Amendments to the Constitution. While the case only concerns a single Congressional District in Louisiana, the Court’s decision regarding the balance between VRA and Constitutional protections will have a transformational impact on the future makeup of Congress and representation across the country, particularly minority representation and particularly across the South. 

A report by Fair Fight Action and the Black Voters Matter Fund found that Democrats would likely lose 19 seats in Congress if the Supreme Court weakens the protections spelled out in Section 2 of the VRA. According to the analysis, Democrats would lose all the seats they currently hold in Tennessee, Mississippi, South Carolina, and Alabama, with Democratic delegations from Florida, Texas, Louisiana, Georgia, and North Carolina becoming dramatically smaller. Seemingly resigned to the fact that the Court’s conservative majority will rule against the VRA, Fair Fight Action CEO Lauren Groh-Wargo said in a statement, “The only way to stop it is to play offense—aggressively redraw maps wherever possible, focus relentlessly on taking back Congress, and be ready to use that power to pass real pro-democracy legislation and hold this corrupted Court accountable.”

The case comes amid a much broader Republican effort to engage in mid-decade, partisan redistricting to protect and expand their majority in next year’s midterm elections. GOP-led states, including Indiana, Florida, and North Carolina, are moving forward with efforts following the lead of Texas Republicans, who, at the urging of President Donald Trump, enacted a new map earlier this year that they hope will net an additional five Republican seats.

Meanwhile, no one is governing in the closely divided Congress. A Republican bill to end the government shutdown was rejected in the Senate for the 10th time last week, with the GOP still well short of the 60 votes they need to approve a stopgap funding bill. Democrats remain united in their demand to extend enhanced Affordable Care Act subsidies—funding set to expire at the end of 2025—for the roughly 22 million Americans who rely on them. Senator Mark Kelly (D-AZ) has called on Trump to encourage Republicans to make a deal, saying, “I think we need the president to make that happen, that he needs to engage with Mike Johnson and John Thune. The president has talked about how he wants this fixed. He wants these subsidies to be dealt with. So, he agrees we should open the government, and we should fix the subsidy issue under the Affordable Care Act, and that’s all we want. So, I don’t see what the issue is.” 

In the meantime, Senate Majority Leader John Thune indicated he was open to the idea, but that Democrats would have to blink first, saying, “We are happy to sit down and talk about a solution on the ACA tax credits, but that needs to happen in a separate context, you know, away from having the government open.” Democrats do not really care what Thune or House Speaker Mike Johnson has to say. Their strategy, as evident in Kelly’s quote, is to engage Trump directly, hoping first that he may want to make a deal and, second, betting that any deal they make with Thune and Johnson is quite likely to be overridden by Trump, anyway.

At least one rank-and-file House GOP member is losing patience with Johnson’s shutdown strategy (or lack thereof), with Rep. Kevin Kiley (R-CA) calling the Speaker’s decision to keep the House out of session “embarrassing.” Kiley, the lone House Republican still coming into work, said, “When people are just not here, and those conversations aren’t taking place.” Kiley, a 40-year-old former state legislator, has little to lose by standing up to GOP leadership. Kiley is one of the handful of California Republicans who will likely lose their seats if the Democratic-backed ballot measure to redraw Congressional maps is successful. Kiley had urged Johnson and other Republican House members to pass legislation to prevent Texas from engaging in mid-decade redistricting, correctly predicting that he and other moderate Republicans would be casualties in an escalating redistricting arms race across the country. In an interview, Kiley offered, “Just because a party thinks that they can gain an advantage by redrawing lines all of a sudden doesn’t mean they should do it. It’s extremely disappointing to me that he did not do the right thing in advocating for our members and protecting the House as an institution.” 

As the shutdown drags on, President Trump is doing everything possible to minimize the pain to many of his constituents while maximizing the pain for Democrats. For instance, the Trump administration dipped into leftover military R&D funding to pay 1.3 million active duty troops and thousands of National Guard members amid the ongoing shutdown. Johnson warned this was only a temporary fix and that service members will miss their October 31st paycheck unless Democrats reopen the government, whom he accused of using military members as “hostages.” At the same time, Trump declared the NY/NJ Gateway Tunnel “permanently terminated,” putting $16 billion, as well as thousands of jobs and a vital transportation connection, at risk.  

The first New York City Mayoral debate of the General Election took place last week with candidates Andrew Cuomo, Zohran Mamdani, and Curtis Sliwa. Cuomo remains stuck in second place, even with incumbent Mayor Eric Adams suspending his campaign, and has been largely unable to slow Mamdani’s momentum since his unlikely primary victory in June. Both Cuomo and Sliwa tried—but failed—to land any meaningful hits on Mamdani, who avoided any slip-ups or mistakes that could have given Cuomo an opening in the final weeks of the race. Some highlights:

In other election news, the New York State Court of Appeals ruled unanimously to uphold a 2023 law moving most local elections to even-numbered years to align with state and federal races. In a statement, Hochul crowed, “The Court of Appeals' unanimous decision to uphold New York’s even-year election law is a victory for democracy and all New Yorkers. I championed this legislation because I believe our state is stronger when more people can make their voices heard. By aligning local elections with the state and federal calendar, we’re making it easier for New Yorkers to participate in government. At a time when voting rights are under attack across the nation, New York is proudly moving in the opposite direction.” Republicans are very unhappy (as are plenty of Democrats) with this result. It is likely to mean higher turnout, but also will effectively nationalize many of these heretofore hyperlocal races: good news for Democrats in the more populated counties, but terrible news for Democrats in more rural areas, especially Upstate outside of Erie, Monroe, Onondaga, and Albany Counties, and obviously contrarily for the GOP. 

-Jack O’Donnell

How long do you think the government shutdown will last?